Imagine you are filing for divorce from your spouse but your son or daughter, who is 20 years old and who attends university, is going to live with you full time. In your divorce application, you want to ask your ex-spouse to pay child support for your son or daughter. Is this provided for in the law? YES
We are often asked whether support payments end automatically when a child turns 18. The short answer is: no, not necessarily.
In some situations, a parent might have to support an adult child financially if the child is not financially independent. In legal terms, an adult child is a child 18 years old or over. The child support the parent pays covers basic needs so the child can have a decent standard of living
The following people may ask for support payments for an adult child:
1) An adult child who wants to either take legal action against one parent, take legal action against both parents or become an impleaded party in their parents’ divorce case;
2) One of the parents of the adult child: a parent can make a legal request against the other parent for child support payments for the adult child who is still a dependant i.e. not economically independent.
If a parent requests child support (for an adult child) during divorce proceedings, the adult child must be dependent on this parent also known as a child of the marriage or in French an enfant a charge. Also, the adult child must be unable to pay for his or her own expenses. For example if the child is sick, has a disability, still in school, or for another valid reason.
There are other conditions that must be met as well. The parent or the child that is claiming support has the obligation to show that the child has been doing everything possible to make ends meet, such as working part-time during their studies (if that is the case of the dependence). This condition does not apply if the adult child has a physical or mental disability. The parent being asked to pay a child support must have the capacity to pay. A parent who can barely makes end meet and has a monthly deficit will not be required to pay a child support for an adult child. Third parties of course can contribute to the child’s needs for example, grandparents or the government, however this does not necessarily cover all of the child’s expenses and does not necessarily alleviate the parents obligations to support their child until they are financially autonomous.
However, child support might not be ordered if the parent provides the child with a place to stay, or if the adult child is lazy (i.e. does not go to school, smokes marijuana all day), intends to use the support payments to pay for something frivolous, behaves unacceptably toward the parent he/she wants the support payments from (for example, the child is physically or verbally abusive toward the parent), or no longer lives at home and is living with their a boyfriend or girlfriend that covers all expenses etc.
Per article 597 of the Civil Code of Quebec every child, regardless of age, owes respect to his/her father and mother. Thus, a child who does not show respect and acknowledgment to his or her parents might have support refused. This ground of refusal is commonly referred to as ingratitude. In Quebec, this obligation of respect is not merely moral, it is a legal obligation.
It is important to note that each case is different and will be carefully considered by a judge.
In terms of how to calculate the amount of child support, it is calculated the same way that it is for a child under 18. Either the federal tables or the Quebec child support determination form will be used, depending on where the parents live. For more information on child support, please consult with our experienced child support lawyers in Montreal here: https://www.spuntcarin.com/child-support-lawyers
If the Quebec child support applies, the judge will take the following factors into account:
- adult child’s age
- state of health
- level of education
- type of education
- civil status (married, single)
- where the child lives
- level of independence
- child’s income if any
If the federal child support tables apply, the judge will consider the following factors:
- adult child’s financial resources
- overall situation
It is important to note that if the child is independent and no longer needs financial support, the parent making child support payments can ask the court’s permission to stop or decrease the payments. If both parents agree that child support can be cancelled or decreased, the parents can prepare an agreement between themselves. Following which a special clerk from the courthouse will homologate the agreement. In all of the above scenarios, the child must be aware, and have a chance to argue against the cancellation of support or any decreases in support payments. Keep in mind that a parent who stops paying child support without getting a court order to cancel or reduce, can be held accountable for payments owed. In summary – the take away is the obligation to support your children does not automatically go away the day of your child’s 18th birthday. In the same vein if there is a court order in the context of a divorce the parent paying support has the obligation to continue paying until there is a court order to cancel or reduce this obligation.
Do not hesitate to reach out to us with any comments or questions!